For a marriage to occur under English law, the place where the marriage takes place must be registered. The location of religious (as opposed to civil) marriages is governed by the Places of Worship Registration Act (PWRA) 1855, which allows a place to be registered only if they are a “place of meeting for religious worship”. What is “religious worship” for the purposes of the Act?
The UK Supreme Court considered this in a case decided by the Supreme Court in favour of a Scientologist couple at the end of last year. Louisa Hodkin and Alessandro Calcioli wanted to be married in a Church of Scientology building in central London. The Scientologists applied for registration of the building under the Act (a document supported by statutory declarations and a certificate from 24 householders stating it was their usual place of worship). The registration was submitted to the local register office, but duly rejected with reference to a case decided in 1970, called Segerdal after their then-minister, when the Scientologists first unsuccessfully applied for registration under the PWRA of their centre near East Grinstead, Sussex.
The problem the Court of Appeal faced in both the first and the recent case was that, in the absence of a statutory test for “religious worship”, how should the courts decide what that is?
In 1970, Lord Denning thought that a “place of religious worship”
…connotes to my mind a place of which the principal use is as a place where people come together as a congregation or assembly to do reverence to God. It need not be the God which the Christians worship. It may be another God, or an unknown God, but it must be reverence to a deity. There may be exceptions. For instance, Buddhist temples are properly described as places of meeting for religious worship. But, apart from exceptional cases of that kind, it seems to me the governing idea behind the words “place of meeting for religious worship” is that it should be a place for the worship of God. I am sure that would be the meaning attached by those who framed this legislation of 1855.
Scientology, he thought, was “more a philosophy of the existence of man or of life, rather than a religion.
Religious worship means reverence or veneration of God or of a Supreme Being. I do not find any such reverence or veneration in the creed of this church. … When I look through the ceremonies and the affidavits, I am left with the feeling that there is nothing in it of reverence for God or a deity, but simply instruction in a philosophy. There may be belief in a spirit of man, but there is no belief in a spirit of God.
The two other judges sitting with Denning agreed, defining religious worship as “humbl[ing] themselves in reverence and recognition of the dominant power and control of any entity or being outside their own body and life” and “something which must have some at least of the following characteristics: submission to the object worshipped, veneration of that object, praise, thanksgiving, prayer or intercession”.
But 42 years later, the judges too a quite different view of religion, and allowed the Scientologists to marry in their chapel. Lord Toulson explained:
There has never been a universal legal definition of religion in English law, and experience across the common law world over many years has shown the pitfalls of attempting to attach a narrowly circumscribed meaning to the word. There are several reasons for this – the different contexts in which the issue may arise, the variety of world religions, developments of new religions and religious practices, and developments in the common understanding of the concept of religion due to cultural changes in society. While the historical origins of the legislation are relevant to understanding its purpose, the expression “place of meeting for religious worship” in section 2 of PWRA has to be interpreted in accordance with contemporary understanding of religion and not by reference to the culture of 1855. It is no good considering whether the members of the legislature over 150 years ago would have considered Scientology to be a religion because it did not exist.
This matters because, as Toulson further noted, “religious and English law meet today at various points. Charity law protects trusts as charitable if they are for the advancement of religion. Individuals have a right to freedom of thought, conscience and religion under article 9 of the European Convention [on human rights]. They enjoy the right not to be discriminated against on grounds of religion or belief under EU [law] and under domestic equality legislation.”
So what were the judges to do? They looked to other cases, and two decisions in particular, one American, the other Australian. In giving the main judgment of the court, Lord Toulson agreed with the inferior court’s finding that Scientology was a religion, overturning Segerdal. He explained why.
Unless there is some compelling contextual reason for holding otherwise, religion should not be confined to religions which recognise a supreme deity. First and foremost, to do so would be a form of religious discrimination unacceptable in today’s society. It would exclude Buddhism, along with other faiths such as Jainism, Taoism, Theosophy and part of Hinduism…The need to make an exception for Buddhism (which has also been applied to Jainism and Theosophy), and the absence of a satisfactory explanation for it, are powerful indications that there is something unsound in the supposed general rule.
Further, to confine religion to a religion which involves belief in a “supreme deity” leads into difficult theological territory. On the evidence… scientologists do believe in a supreme deity of a kind, but of an abstract and impersonal nature. Ideas about the nature of God are the stuff of theological debate…[I]t is not appropriate that the Registrar General [of marriages] or courts should become drawn into such territory for the purpose of deciding whether premises qualify as a place of meeting for religious worship.
After all, Toulson said, the Charities Act 2011 states that “religion” for the purposes of charity law “includes (i) a religion which involves belief in more than one god, and (ii) a religion which does not involve belief in a god.” So far as the PWRA was concerned,
It might be argued that the expression “religious worship”…shows that Parliament intended the word “religious” to be given a narrow interpretation. I would reject that argument. The language of the section showed an intentionally broad sweep. It included “Protestant Dissenters or other Protestants”, “persons professing the Roman Catholic religion”, “persons professing the Jewish religion” and “any other body or denomination of persons”. It may be that the members of the legislature in 1855 would not have had in mind adherence to other faiths such as Buddhism, but that is no ground for holding that they were intended to be excluded from legislation passed to remove religious discrimination.
Toulson could have stopped here, but he could not resist building on the various “indicia” of a religion that he drew from the international case law.
I would describe religion in summary as a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. By spiritual or non-secular I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science. I prefer not to use the word “supernatural” to express this element, because it is a loaded word which can carry a variety of connotations. Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science. I emphasise that this is intended to be a description and not a definitive formula.
Given this wider definition of religion, it didn’t take much to find Scientology practice to be worship, and thus religious worship for the purpose of the Act.
Catholicism has long been recognised as a religion (although, in England at least, probably more as merely a denomination of Christianity) and the PWRA 1855 was in fact passed to allow Catholic marriages in England. But the widening of what is religious necessarily implies that all religions are equal in the eyes of the law. Indeed, the authorising of marriage “should not depend on fine theological or liturgical niceties as to how precisely they see and express their relationship with the infinite”.
One effect of this will be to weaken still further the law’s traditional ties to the Judaeo-Christian understanding of marriage. Given the advent of same-sex marriage — the first will take place in March — this new understanding of places of religious worship is likely to give ammunition to those who say the Catholic Church should get out of civil marriage altogether.
The second point is, as Mba’s case shows, the courts are increasingly having to consider whether aspects of religiosity fall to be protected or not in law. As a hierarchy of rights develops – say, preferring measures protecting people on the grounds of sexual orientation against discrimination over measures protecting religious freedom – and as the scope for religious protection increases, courts will be faced with more and more disputes between the two.
[Peter Smith is a barrister]